Citation Nr: 0501105
Decision Date: 01/13/05 Archive Date: 01/19/05
DOCKET NO. 03-31 177 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Teresita C. Velasquez
ATTORNEY FOR THE BOARD
L. Crohe, Associate Counsel
INTRODUCTION
The appellant is the widow of the veteran, who had recognized
active service in July 1943 and from January 1944 to June
1946. This case is before the Board of Veterans' Appeals
(Board) on appeal from a September 2002 rating decision by
the Manila Department of Veterans Affairs (VA) Regional
Office (RO).
FINDINGS OF FACT
1. The veteran died in October 1979; cardiorespiratory
arrest due to septicemia due to chronic myelogenous leukemia
is certified as the cause of his death.
2. Cardiovascular disease, respiratory disease, septicemia,
and leukemia were not manifested in service; cardiovascular
disease or leukemia was not manifested in the first
postservice year; and there is no competent evidence linking
the veteran's death-causing illnesses to service.
3. The veteran did not have any service-connected
disabilities, and service connected disability did not
contribute to cause his death.
CONCLUSION OF LAW
Service connection for the cause of the veteran's death is
not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,
1310, (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309,
3.312 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Preliminary Matters
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA), codified at 38 U.S.C.A. §§ 5102, 5103, 5103A,
5107, became law. Regulations implementing the VCAA are at
38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The VCAA
applies in the instant case. The Board finds that the
requirements of the VCAA are met.
VA has fully complied with the mandates of the VCAA. Service
connection was initially denied as not well-grounded, but was
thereafter reconsidered on the merits, and well-groundedness
is not an issue. The veteran was provided a copy of the
September 2002 decision that denied her claim on the merits.
In that decision, a September 2003 statement of the case
(SOC), and an October 2003 supplemental SOC she was notified
of the evidence necessary to substantiate her claim, and of
what was of record. By correspondence in October 2001 (prior
to the September 2002 rating decision) and November 2003, she
was notified of the VCAA and how it applied to her claim.
The October 2001 and November 2003 letters, September 2003
SOC, and October 2003 supplemental SOC clearly cited the
changes in the law brought about by the VCAA and implementing
regulations, and explained that VA would make reasonable
efforts to help the appellant get pertinent evidence, but
that she was responsible for providing sufficient information
to VA to identify the custodian of any records. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002). She was
notified that evidence submitted within a year would be
considered. In fact, all evidence received in the interim
has been accepted for the record and considered. Although
the appellant was not specifically advised to submit
everything she had pertinent to her claim, she was advised
that VA would obtain any Federal government records,
including any VA treatment records and that if she completed
the provided releases VA would assist her in obtaining any
records she identified. This notice was essentially
equivalent to telling her to submit everything she had
pertinent to the claim. In one form or another she has
received all mandated notice; she is not prejudiced by any
technical notice deficiency along the way.
Regarding the duty to assist, the record includes a June 1946
Affidavit for Philippine Army Personnel, medical
certificates, and treatment records from Veterans Memorial
Hospital. All identified pertinent available records have
been obtained. The duty to assist requirements appear to be
substantially met. The appellant is not prejudiced by the
Board's proceeding with review of the matter on the merits at
this point. See Conway v. Principi, 6 Vet. App. 226 (1994).
II. Factual Background
During his lifetime the veteran had not established service
connection for any disability. His death certificate
reveals that he died in October 1979 at the age of 57 and
lists the cause of his death as cardiorespiratory arrest
due to septicemia due to chronic myelogenous leukemia. No
other significant conditions are listed.
The veteran's service records consist of a June 1947
processing affidavit which, under the heading wounds or
illnesses incurred in service lists none.
Postservice medical records include a January 1976 report
from Dr. E.B. that included diagnoses of malignant malaria,
splenomegaly, and secondary anemia. Dr. E.B indicated that
the veteran began to seek treatment for the above-mentioned
disorders in July 1947. A March 1976 rating decision denied
service connection for malaria with splenomegaly and anemia
because the disability was not shown to be related to
service.
A medical certificate from Dr. C.S. received in February 2000
indicates that he treated the veteran from 1973 to 1975 for
myelogenous leukemia. Medical records from Veterans Memorial
Hospital from July to September 1975 and from September to
October 1979 show treatment for chronic myelogenous leukemia
and splenomegaly. In May 2002, in response to a request for
medical records, Dr. C.S. indicated that the records were
unavailable. In her June 2003 Notice of Disagreement, the
appellant claimed that the veteran acquired malaria in
service and that the malaria caused his leukemia.
A medical certificate from Dr. C.S. indicated that he treated
the veteran from 1973 to 1975 for myelogenous leukemia and
malaria relapse. Dr. C.S. noted that the veteran's first
malaria attack was during his recognized active service, and
that previous treatment records had been damaged. He noted
that the certification was issued at the request of the
appellant.
III. Criteria and Analysis
To establish service connection for the cause of the
veteran's death, the evidence must show that a disability
incurred in or aggravated by active service was the principal
or contributory cause of death. 38 U.S.C.A. § 1310; 38
C.F.R. § 3.312(a). In order to constitute the principal cause
of death the service-connected disability must be one of the
immediate or underlying causes of death, or be etiologically
related to the cause of death. 38 C.F.R. § 3.312(b). It is
not sufficient to show that a service- connected disability
casually shared in producing death; rather it must be shown
that there was a causal connection. 38 C.F.R. § 3.312(c)(1).
In the case of a veteran who engaged in combat with the enemy
in active service with a military, naval, or air organization
of the United States during a period of war, the Secretary of
VA shall accept as sufficient proof of service connection of
any disease or injury alleged to have been incurred in or
aggravated by such service satisfactory lay or other evidence
of service incurrence or aggravation of such injury or
disease, if consistent with the circumstances, conditions, or
hardships of such service, notwithstanding the fact that
there is no official record of such incurrence or aggravation
in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. §
3.304(d). 38 U.S.C.A. § 1154(b) does not create a presumption
of service connection for a combat veteran's alleged
disability; the appellant is still required to meet the
evidentiary burden as to service connection, such as whether
there is a current disability or whether there is a nexus to
service, both of which require competent medical evidence.
Collette v. Brown, 82 F.3d 389, 392 (1996).
Where a veteran served 90 days or more of continuous, active
military service during a period of war, service connection
can also be granted for certain enumerated chronic diseases,
including cardiovascular disease and leukemia, if they become
manifest to a degree of 10 percent or more within one year of
separation from active service. This presumption is
rebuttable by affirmative evidence to the contrary. 38
U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
It is the policy of VA to administer the law under a broad
interpretation, consistent with the facts in each case, with
all reasonable doubt to be resolved in favor of the claimant;
however, the reasonable doubt rule is not a means for
reconciling actual conflict or a contradiction in the
evidence. 38 C.F.R. § 3.102.
The United States Court of Appeals for the Federal Circuit
has recognized the Board's "authority to discount the weight
and probity of evidence in light of its own inherent
characteristics and its relationship to other items of
evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir.
1997).
The veteran's death certificate lists the cause of his death
as cardiorespiratory arrest due to septicemia due to chronic
myelogenous leukemia. Neither cardiovascular disease nor
leukemia is shown by competent evidence to have been present
in service or manifested to a compensable degree in the first
postservice year. There is no competent evidence that
septicemia was manifested in service. Consequently, service
connection for such diseases (and ultimately the cause of the
veteran's death) on the basis that they were incurred in
service (or may be presumed to have been incurred in service)
is not warranted.
The appellant claimed in her NOD that during service the
veteran had malaria, which ultimately caused his leukemia.
The record does not support her theory of causation. There
is no contemporaneous evidence that the veteran had malaria
in service. Later recollections by his physicians to that
effect are not supported by any clinical records, and are
inconsistent with contemporaneous records (e.g. the
Philippine Army processing affidavit in 1947). More
significantly, there is no competent (medical) evidence to
the effect that the veteran's myelogenous leukemia resulted
from a bout malaria. As a layperson, the appellant is not
competent to render an opinion in a matter requiring
specialized medical knowledge, such as medical diagnosis or
etiology. The Court has held that "where the determinative
issue involves medical causation or a medical diagnosis,
competent medical evidence is required." Grottveit v. Brown,
5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App.
492, 494 (1992).
The preponderance of the evidence is against the appellant's
claim; hence, it must be denied.
ORDER
Service connection for the cause of the veteran's death is
denied.
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GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs